In re Brown's Estate

• Decision Date: 18 October 1932
• Citation: In re Brown's Estate, 14 P.2d 1107, 140 Or. 615 (Or. 1932)
• Parties: In re BROWN'S ESTATE. v. SECURITY SAVINGS & TRUST CO. et al. BROWN
• Court: Oregon Supreme Court

14 P.2d 1107

140 Or. 615

In re BROWN'S ESTATE.

BROWN v. SECURITY SAVINGS & TRUST CO. et al.

Supreme Court of Oregon

October 18, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

In the matter of the estate of George W. Brown, deceased, whose widow, Susan Brown, filed a petition for admeasurement of dower, opposed by the Security Savings & Trust Company executor, and others. From an order denying the petition petitioner appeals.

Reversed and remanded, with direction.

Henry S. Westbrook, of Portland, for appellant.

Howard P. Arnest, of Portland (Arthur A. Goldsmith, of Portland, on the brief), for respondents.

BELT J.

This is an appeal from an order of the circuit court denying a petition for the admeasurement of dower. Geo. W. Brown, the decedent, and Susan Brown were married on November 24, 1927. On June 28, 1928, Brown died, and, by his last will and testament, provided for his widow as follows:

"Item III. I hereby declare it to be may will, intention and desire that my wife, Susan Brown, who has sued me for divorce and who has treated me in a cruel and inhuman manner shall have no part of my estate other than the sum of Ten ($10.00) Dollars, which sum I do hereby bequeath to her; and I further declare that I have heretofore made executed and delivered to my said wife a deed, conveying to her, as tenant by the entireties with me, an undivided one-half interest in the real property where we now reside situated in Multnomah County, Oregon, described as the East 41.18 feet of the West 82.36 feet of Lots four, five and six (4, 5 and 6), Block twenty-six (26) in Sunnyside within the corporate limits of the City of Portland, and that said conveyance was made to her under an agreement with her whereby the same was accepted in full of all her claims upon real property belonging to my estate."

On March 26, 1929, the widow filed her petition alleging a dowable interest in certain parcels of real property described as follows:

(1) The south 48 feet of lots 10 and 11 of block 2, Strang's addition to the city of Portland. This property, on January 6, 1923, was sold on contract by W. B. Pearis to one Struble. Geo. W. Brown, prior to his marriage with the petitioner herein, acquired the property from Pearis subject to the contract of sale which the latter had made with Struble. Later, Pearis acquired the interest of Struble in the contract of purchase and was in possession of the property at the time of the death of Brown.

(2) Lot 4, block 6, Cannongate, Portland, was acquired by Geo. W. Brown on April 27, 1927, subject to a contract of sale which his predecessor in title had made with Carl Dahlstrom. At the time of Brown's death there was a balance due on the purchase price. In the administration of the estate his balance was paid to the executor, and the latter executed a deed, in which the widow did not join, conveying this property to Dahlstrom.

(3) Lot 6, block 6, Cannongate was acquired by Geo. W. Brown on May 18, 1927, from Wm. A. Sylvester who conveyed it subject to a mortgage and contract of sale. In the administration of the estate, one Pace, who had contracted to purchase the property from Sylvester, paid the balance of the purchase price to the executor, and a deed of conveyance, in which the widow did not joint, was made in his favor.

(4) Part of lots 5 and 6, block 19, Sunnyside, was, on October 27, 1926, contracted to be sold to Walter Ray Davis by Geo. W. Brown. Later Davis assigned his interest in the contract to M. B. Collins who was in possession of the property at the time of Brown's death.

(5) Lot 12, block 10, Westmoreland, was, on March 28, 1928, sold on contract by Geo. W. Brown and Susan Brown to Anna C. Cahill.

(6) The "Brooks property" on Fremont street, Portland, was, on February 16, 1928, contracted to be sold by Geo. W. Brown and Susan Brown to L. W. Brooks and wife, subject to a $1,500 mortgage. After the death of Brown and during the pendency of this proceeding, Brooks paid to the executor the balance of the purchase price, namely $1,613.32, and this sum was deposited in escrow with the defendant Security Savings & Trust Company to be held by it subject to whatever dowable interest the widow had in this property.

(7) Part of lot 20, block 28, Irvington, Portland. On March 10, 1928, Geo. W. Brown and his wife executed a lease with option to purchase in favor of D. Bessinger. After the death of Brown, this lease was canceled and the option to purchase was never exercised.

(8) The east 40 feet of lots 4, 5, and 6, block 26, Sunnyside, was contracted to be sold by Geo. W. Brown after marriage, in which contract the wife did not join.

Relative to the first four above-listed parcels of real property which, prior to marriage, were acquired by Geo. W. Brown subject to contract of sale, or which were contracted by him to be sold, it is clear that the widow has no dowable interest therein. At the time of his marriage, Brown was not "seised of an estate of inheritance" (section 10-301, Oregon Code 1930) in this property. As vendor he merely held the legal title in trust for the vendee. The vendee, upon performance of the contract of purchase, was entitled to have conveyed to him a good title, and he could not be deprived of such right by the marriage of the vendor. The estate in this land of which Brown was seised during coverture was one qualified and incumbered by the contract of sale. It was not an estate of inheritance. In support of this conclusion, see 19 C.J. 481 and Pomeroy's...